Purchase Orders

THE FOLLOWING ARE INSTRUCTIONS FROM THE FRONT SIDE OF SEAGATE PURCHASE ORDERS:

INSTRUCTIONS:

Read this entire order form, including the incorporated terms and conditions located at https://www.seagate.com/legal/purchase-orders-legal-overview/purchase-orders/. The terms and conditions located at the referenced URL (“Terms”) in effect on the Order Date appearing on this order are a material part of this order. Do not accept this order unless you accept the Terms. By accepting this order you agree that you have read, understood, and accepted the Terms. If you cannot access the Terms, request them from the buyer.

THE FOLLOWING ARE THE CONTRACTUAL TERMS FROM THE BACK SIDE OF SEAGATE PURCHASE ORDERS:

PURCHASE ORDER

1.             ACCEPTANCE

1.1.         Acceptance Must Mirror Offer. This order is an offer to purchase goods or services under these exact terms only; this order is limited to acceptance of these exact terms without modification. Seagate rejects any previously proposed terms that add, vary, or conflict with this order.

1.2.         Additional Terms Are Proposals. Any additional or different terms in your acceptance will be construed as proposals and will not become part of our contract with you unless we agree in writing to your additional terms. All references in this order to “you” or “your” refer to the supplier designated on this order. All references in this authorization to “us” or “we” refer to the Seagate entity making this order.

1.3.         Existing Agreement. If we have an existing formal written agreement with you governing our purchase of your goods or services, then the terms in the formal written agreement will supersede any contrary terms in this order.

1.4          Formation of Contract. Seagate agrees to purchase and you agree to supply the goods or services described on the face of this order according to the terms in this order.

2.             PRICES

2.1.         Lowest Price. Your prices may not be greater than any prices you offer to any other customer for the same goods or services in similar quantities and condition from the time when this order is placed with you and the time it is fully performed by you.

2.2.         Last Quoted Price. If no price is specified in this order, your price must be equal to or less than the last price you previously quoted or charged us.

2.3.        Continued Orders. Should Seagate continue purchasing products or services (e.g., renew subscriptions) through this order, your price must not exceed an annual increase of 3% of the prior price.

2.4.         Travel Expenses. If this order allows for reimbursement of your travel expenses, you must comply with our corporate travel policy, located at http://www.seagate.com/about/legal-privacy/corporate-travel-policy, which is also available from us upon request, and incorporated into this order.

2.5.         Prepay & Add. If this order says “prepay & add,” then you must prepay all shipping costs and include the actual, reasonable shipping costs on your invoice as a separate line item. You must provide sufficient documentation for us to verify the actual shipping costs upon request.

2.6.         Sales or Value-added Tax. If an item is designated as taxable (including sales and value-added tax (“VAT”)), then include the actual tax (e.g., sales or VAT) on your invoice as a separate line item.

2.7.         Prices All Inclusive. Except for “prepay & add” and sales tax and VAT charges, the total price in this order includes all charges and expenses related to the shipping and delivery of goods or the performance of services. If the price is based on weight of the goods, the weight ordered excludes the weight of any packaging.

2.8.         Invoices. You will submit a separate invoice to us for each shipment. Your invoice must include the unique order number assigned to this order and may not cover more than one order. We will pay invoices issued in accordance with this order 90 days after receipt of your proper invoice (unless otherwise agreed between us in writing), or the maximum days required by applicable law (supervening the express agreement of the parties), whichever is shorter. Payment of your invoice (i) does not constitute acceptance of your products or services, and (ii) may be subject to adjustment for errors, overcharges, shortages, or other defects.

3.             SHIPPING TERMS

3.1.         Incoterms. All shipping terms in this order refer to International Chamber of Commerce, Incoterms 2020. If the goods are to be delivered through a just-in-time (“JIT”), vendor-managed inventory (“VMI”) or 3^rd-party logistics (“3PL”) facility, the delivery destination is not the JIT, VMI or 3PL facility, but the Seagate facility that receives the goods after the goods are shipped from the JIT, VMI or 3PL facility.

3.2.         Transfer of Title. Title of goods will pass to Seagate when delivery is complete according to the designated delivery term as defined in Incoterms 2020.

3.3.         Cargo Insurance. If the designated Incoterm requires cargo insurance, you must purchase cargo insurance under Institute Cargo Clauses, Clause A (formerly “all risks”) of the International Underwriting Association of London, or its successor. If you do not purchase insurance under Clause A, you will bear the risk of loss for all risks that are covered under Institute Cargo Clauses, Clause A.

3.4.         Shipping Instructions. You will ship only the quantities specified in this order. You will not over-ship or under-ship. You will ship your goods for arrival on the delivery date specified in this order. In all shipments, you must comply with the Customs Clearance Documentation, located at https://www.seagate.com/legal/trade-compliance/customs-clearance-documentation/, (including any applicable country-specific requirements identified in the Customs Clearance Documentation) which is also available from us upon request, and incorporated into this order. If Seagate incorporates additional, specific instructions relating to packing, shipping, and/or delivery in this order, such specific instructions will be binding on you and if there is any conflict between such specific instructions and the provisions in this section 3.4, then the specific instructions will prevail.

3.5.         Overshipments and Early Shipments. If you ship more goods than ordered, or if you deliver the goods earlier than ordered, we may purchase some or all of the goods or return some or all of the goods at your risk and expense. You will enclose a packing slip with each shipment and indicate the order number on the packing slip. Advise us immediately if you are unable to ship or in any case expect any delays in your goods’ arrival on the specified delivery date(s) in this order.

3.6.         Tax or Duty Refunds. We reserve the right to any tax or duty refunds. You will provide us with any documents necessary to prove importation and to claim duty drawbacks or similar relief.

3.7          Risk of Loss. Risk of damage to or loss of the goods will pass to us upon delivery to us in accordance with the delivery terms in this order or the governing formal agreement.

3.8          Inspection and Testing. You may not unreasonably refuse any request by us to inspect and test the goods or any of them during manufacture, processing, or storage at your premises or at any third party before dispatch, and you must provide us with all facilities reasonably required for inspection and testing. If as a result of inspection or testing we are not satisfied that the goods will comply in all respects with this order (including without limitation all specifications, instructions, designs or patterns supplied by us) then we will be entitled, in addition to any other right or remedy and without liability under this order, to reject or refuse to accept such goods. Furthermore, the goods will be subject to final inspection by us at any time within 90 days after delivery to us in accordance with the terms of this order or such longer time as may be reasonable.

4.             PACKAGING AND LABELING

4.1.         Packaging. You must package all goods in accordance with good commercial practice and in a manner acceptable to common carriers for shipment at the lowest rate for the goods involved, and adequate to ensure safe and timely arrival of the goods to their destination.

4.2.         Labeling. Your packaging must be labeled with this order number, the date of shipment, and the names of any consignee and consignor. You must include an itemized packaging sheet with each shipment. You must mark each package with any required handling and shipping information, and you must comply with any country-of-origin markings to satisfy the customs authorities of the destination country.

5.             CANCELLATION AND RESCHEDULING

5.1.         Cancellation for Default. Time is of the essence under this order. We may cancel this order in whole or in part if you do not deliver the goods or perform the services in full conformance with the warranties in Section 6 within the time specified in this order. If we cancel this order for default and it is later determined that you were not in default, your rights will be construed as if the cancellation was for our convenience under Section 5.3.

5.2.         Cancellation of Government Contract. If this order bears a United States government contract number, we may cancel this order and any related orders upon notice of termination of the prime contract from the government. If we cancel this order for termination of a US government prime contract, we will provide fair compensation, as provided for under the Contract Settlement Act of 1944 (Public Law 395, 78th Congress).

5.3.         Cancellation for Convenience. We may cancel this order, in whole or in part, at any time for our convenience. If we cancel this order for our convenience and we give you less than 30 days’ notice of cancellation, we will reimburse your actual reasonable out-of-pocket costs that are not capable of being mitigated. To be reimbursed, you must submit your request for reimbursement within 30 days after our notice of cancellation.

5.4.         Work in Progress. Upon receiving our notice of cancellation, regardless of the reason for the cancellation, you must immediately stop all work in progress and use your best efforts to mitigate any costs associated with the cancellation. We have the option to purchase any work-in-progress goods (“WIP”) and any raw materials or components you may have obtained to use in producing the goods or performing the services in this order at the time of its cancellation. The price at which we may purchase such WIP will be a fraction of the price of the goods in this order prorated against the percentage of its completion. The price at which we may purchase any raw materials or components will be the actual purchase price for the same. You are not entitled to any other remedy for cancellation of this order except as provided in this section.

5.5.         Rescheduling. We may reschedule your delivery of goods or performance of services at any time without liability. The new date for delivery or performance will not be more than 180 days beyond the originally scheduled date.

5.6.         No Autorenewal. This order will not automatically renew.

6.             WARRANTIES

6.1.         Warranty Period. All warranties under this order continue for five years, commencing on the date of delivery to us, unless a different warranty period is stated on the face of this order.

6.2.         Warranties Regarding Goods. You make the following warranties to us regarding all goods you provide under this order:

(a) The goods are new and do not contain any used or refurbished parts.

(b) The goods function properly under normal use, are of good workmanship, free from defect, of merchantable quality, and fit for our intended use.

(c) The goods fully comply with any specifications provided by us, including without limitation our product stewardship specification, and any samples or documentation provided by you.

(d) The goods are free of any encumbrances.

(e) The goods do not violate any intellectual property rights of any third party.

6.3.         Warranties Regarding Services. You make the following warranties to us regarding all services you provide under this order:

(a) You perform the services with reasonable skill and care, in a professional manner and in full conformance with any specifications or statements of work provided by us.

(b) Your performance of the services does not violate any intellectual property rights of any third party or any duty of confidentiality you owe to any third party.

6.4.         Other Warranty Terms. The warranties listed above are in addition to any other warranties expressly made by you or imposed by law. All warranties will survive inspection and payment by us and are assignable to our successors and assigns.

6.5.         Warranty Remedies. If any goods or services do not meet the warranties, we may, at our option, and without additional cost to us,

(a) require you to repair or replace the goods until the goods meet the warranties,

(b) require you to re-perform any services until the services meet the warranties,

(c) return any of the goods to you at your expense for a full refund,

(d) correct the non-conformance and charge you for the cost to make the correction,

(e) engage a third party to provide substitute goods or services and charge you for the costs of obtaining the substitute goods or services from the third party.

6.6.         Remedies Nonexclusive. The remedies listed above are in addition to any other remedies available to us in law or equity. Our review and approval of your materials or designs will not relieve you of the warranties.

6.7         Repaired or Replacement Warranty Period. The warranties in sections 6.2 to 6.6 will apply to all goods or services remedied thereunder for the remainder of the warranty period applied to the corresponding goods or services under section 6.1.

7.             LIMITATION OF LIABILITY

7.1.         Limitation of Amount of Liability. Our maximum liability to you arising out of this order, regardless of the basis of liability or the form of action, whether arising in contract, tort (including negligence) or otherwise, will not exceed the total price stated in this order plus sales tax. VAT, and prepay & add charges.

7.2.         Limitation of Type of Liability. We will not be liable to you for any loss of profit, loss of income, loss of business, loss of revenue, loss of goodwill, or for any indirect, special, incidental, punitive, or consequential damages, however caused, regardless of whether we are advised of the possibility of such damages.

7.3.         Exclusion of Liability of Our Employees. Our officers, directors, employees, affiliates and other agents are not personally liable to you under this order, and will not be liable to you under any claim or action related to this order.

7.4.         Purpose. The purpose of this section is to limit our potential liability arising out of this order, and that allocation of risk is reflected in the prices. This Section 7 will apply despite the failure of any remedy of its essential purpose.

8.             INTELLECTUAL PROPERTY RIGHTS

8.1.         Preexisting Intellectual Property. We own all intellectual property rights related to any information or items we provide you. You may not use our intellectual property except to benefit us.

8.2.         Developed Intellectual Property. The goods or services ordered are specially ordered or commissioned by us and are works made for hire. You assign and transfer to us, without further consideration, all rights and interest in any intellectual property developed by you during your performance of any services or delivery of any goods under this order. You must immediately disclose to us any intellectual property developed by you arising out of your performance of the services. You agree to take all necessary actions to effect your assignment and transfer of your interest in any intellectual property developed by you under this order, including but not limited to, executing all documents as may be required under applicable laws.

8.3.         License Grant. Subject to Section 8.2 immediately above, if the goods or services include software and documentation, you grant to Seagate a royalty-free, irrevocable, perpetual, worldwide, transferable license, with a right to grant further sublicenses, to use, import, export, reproduce, internally display, internally perform, and distribute the software and its documentation for Seagate’s and its affiliates’ use or as integrated into products and services.

8.4.         Seagate Branding Guidelines. If this order or your performance of the services ordered requires your use of any of Seagate trademarks, logos, images, artwork, and/or other brand features owned or controlled by Seagate (as applicable, each a “Seagate Mark”), you will (a) use, reproduce, affix, distribute, and display the Seagate Mark solely as required for the purposes of this order or your performance of the services ordered, and (b) comply with any usage guidelines outlined by Seagate and the terms set forth at branding.seagate.com. The above permission as to the Seagate Mark is personal, revocable, and non-transferable.

8.5.         Intellectual Property Indemnification. You will defend and indemnify us and our affiliates and our respective directors, officers, and employees against any claim alleging that your goods or services infringe or violate a patent, copyright, trademark, trade dress, trade secret, or any other contractual right, proprietary right, or intellectual property right of any third party.

9.             CONFIDENTIALITY, DATA PROTECTION, AND SECURITY

9.1.         Confidential Information. Any information regarding our intellectual property is our confidential information. The existence of this order and the information in this order are our confidential information. Any other information that we provide to you that is identified as “confidential,” or is identified with similar language, or which under the circumstances surrounding disclosure reasonably ought to be treated as confidential, is our confidential information.

9.2.         Nondisclosure. Except as required by law, you may neither disclose our confidential information to any third party nor use our confidential information for any purpose other than for your performance under this order without our prior written consent. You must segregate our confidential information from all other information. You must destroy or return our confidential information to us upon our request.

9.3.         Data Protection and Security. If this order allows for the processing of personal information, including access and transfer, you must comply with our Data Protection and Security Exhibits, located at https://www.seagate.com/legal-privacy/electronic-and-physical-security-and-data-protection/ for privacy, and at https://www.seagate.com/legal/purchase-orders-legal-overview/independent-contractors-security-requirements/ for security, which are also available from us upon request and incorporated into this order.

10.             INDEMNIFICATION AND INSURANCE

10.1.         General Indemnification. You will defend and indemnify us and our affiliates and our respective directors, officers, and employees against any claim or action arising out of your performance of this order.

10.2.         Insurance. You will maintain general commercial liability insurance, including public liability and product liability, in the minimum amount of US $1,000,000 per occurrence (except in North America, the minimum amount is US $2,000,000) and $4,000,000 in the aggregate combined single limit for personal injury and property damage. If you have employees, you must maintain employer’s liability in a minimum amount of US $2,000,000 (or its monetary equivalent in your local currency) per occurrence and workers’ compensation insurance in accordance with law. Your insurance must include a waiver of the insurer’s subrogation rights against us, unless prohibited by law.

11.             DISPUTE RESOLUTION

11.1.         Good-Faith Negotiation Followed by Mediation. The parties will attempt to resolve any dispute relating to this order through good faith, informal efforts within 30 days. If after such 30 days the parties are unable to resolve their dispute(s), either party may initiate mediation proceedings in accordance with this section 11.1. Mediation will be conducted as follows: (i) for orders governed by California law, at a Judicial Arbitration and Mediation Services facility in Santa Clara County, California; (ii) for orders governed by the laws of the People’s Republic of China, at a China International Economic and Trade Arbitration Commission Mediation Center facility in Wuxi, Jiangsu Province, the People’s Republic of China; and (iii) for orders governed by Singapore law, by the Singapore Mediation Centre in Singapore. The parties will bear their own costs.

11.2.         No Action Pending Mediation. Subject to Section 11.3, neither party may bring any other action until the completion of mediation. Any court of competent jurisdiction may enforce the provisions of this section, and the party seeking enforcement will be entitled to an award of attorneys’ fees and costs to be paid by the party against whom enforcement is ordered.

11.3.         Exclusion for Equitable Relief for Confidentiality. We may seek equitable relief at any time and anywhere to enforce the provisions of Section 9 of this order.

12.          MISCELLANEOUS

12.1.       Governing Law and Jurisdiction. Subject to Section 11 above, all disputes, litigation or other proceedings arising under or relating to this Agreement will take place as set forth below.  If this order originates from the Americas and Europe, this order will be construed in accordance with, and governed exclusively by, the laws of the State of California, U.S.A., without regard to its conflict-of-laws rules. You irrevocably submit to the exclusive personal jurisdiction and exclusive venue of the courts located within the County of Santa Clara, California, U.S.A.

If this order originates from the People’s Republic of China, this order will be construed in accordance with, and governed exclusively by, the laws of the People’s Republic of China, without regard to its conflict-of-laws rules. You irrevocably submit to the exclusive personal jurisdiction and exclusive venue of the courts located within Wuxi, Jiangsu Province, the People’s Republic of China.

Otherwise, this order will be construed in accordance with, and governed exclusively by, the laws of Singapore, without regard to its conflict-of-laws rules. You irrevocably submit to the exclusive personal jurisdiction and exclusive venue of the courts located within Singapore.

You waive all defenses of lack of personal jurisdiction and forum non-conveniens. Either party may enforce any right or remedy adjudicated by a court of competent jurisdiction in accordance with this order in any court. In any action or suit to enforce any right or remedy under this order or to interpret any provision of this order, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this order.

12.2.       Compliance With Laws. You must comply with all applicable laws in performing your obligations under this order, including without limitation those governing environment, health and safety, and labor and employment practices. You must require that your sub-suppliers also comply with all applicable laws and regulations in effect. You will also maintain all governmental approvals, licenses, registrations and the like as may be necessary or advisable for performing your obligations under this order. Upon request, you will certify that you comply with all applicable laws and regulations. We may audit you to confirm your compliance with this section.

12.3.       Assignment. You may not assign your rights or delegate your duties under this order to any third party without our prior written consent. Any unauthorized attempted assignment of your rights or delegation of your duties under this order is void.

12.4.       Severability; Survival. Sections 7, 8, 9, 10.1, 11, and 12 are material to this order, are not severable, and will survive termination or cancellation of this order. Section 6 will survive for 5 years after delivery of goods or completion of services. If any term or provision of this order is or becomes invalid under any applicable law, then the remainder of this order will not be affected thereby and the remaining terms and provisions of this order will remain in effect as if the invalid portion were not a part of this order.

12.5.       Trade Compliance.

(a)     General. You must comply with all applicable import and export laws and regulations in the course of supplying goods and services to Seagate.

(b)    Trade Sanctions. You must not supply to Seagate any good or service that originates in a territory subject to any applicable embargo, and you warrant that you are not owned or controlled by any party restricted under applicable sanctions.

(c)     Trade Compliance Information.  You must provide to Seagate accurate trade compliance information regarding goods and services you supply to Seagate including: the harmonized tariff schedule number, export control classification number, value, value of any assists, country of design or development, country of origin, and other information necessary to ensure compliance with applicable import or export requirements. You must notify us at ita.clearances@seagate.com if this information changes, and in advance of providing any technology or technical data subject to export control restrictions.  You must ensure that all digital documents referring to such technology or technical data are marked as export-controlled.

(d)    Forced Labor. You must not supply to us goods or services that are the result of forced labor or any other practices inconsistent with Corporate Responsibility in the United Nations Guiding Principles on Business and Human Rights.

(e)     Drawback.  Upon our request, you must provide all information that may be necessary for Seagate to claim applicable drawback or other import credits in connection with your products.

(f)      Trade Remedies. You must notify us at ita.clearances@seagate.com if you become aware that your goods are subject to any antidumping or countervailing duties or other trade remedy or special import tariffs or restrictions.

(Global, Rev 240326)